On Sept. 28, CDPL honored two of our community’s most outstanding capital defense attorneys: Elaine Gordon, the winner of this year’s Osborn Award, and Ken Rose, winner of the Amsterdam Award. [Go here to read more about their exceptional careers.] Our community shared a beautiful evening at Parizade in Durham. It was an event that reminded us of the urgency of our work and the incredible commitment of our colleagues.

Of all the men and women on death row in North Carolina, Henry McCollum’s guilty verdict looked airtight. He had signed a confession full of grisly details. Written in crude and unapologetic language, it told the story of four boys, he among them, raping and suffocating11-year-old Sabrina Buie. His younger brother, Leon Brown, also admitted involvement in the crime. Both were sentenced to death in 1984.

Leon was later resentenced to life in prison. But Henry remained on death row for 30 years and became Exhibit A in the defense of the death penalty. U.S. Supreme Court Justice Antonin Scalia pointed to the brutality of Henry’s crime as a reason to continue capital punishment nationwide. During North Carolina legislative elections in 2010, Henry’s face showed up on political flyers, the example of a brutal rapist and child killer who deserved to be executed.

What almost no one saw — not even his top-notch defense attorneys — was that Henry McCollum and Leon Brown were innocent. In 2014, both were exonerated by DNA evidence and, in 2015, then-Gov. Pat McCrory granted them a rare pardon of innocence.

In a new report, the Center for Death Penalty Litigation — which represented McCollum for the last two decades he spent on death row — tells the story of how two intellectually disabled teenagers were pressured into signing the false confessions that sent them to death row and how they were finally able to prove their innocence.

Henry and Leon’s case is not so much a lesson in how wrongful convictions are uncovered as it is a warning of how easily they can be missed entirely. If not for a complex and unlikely chain of events that unfolded over decades, Henry and Leon would likely have remained in prison for the rest of their lives. Henry might have been executed.

The J. Kirk Osborn Award

J. Kirk Osborn

It has now been a decade since we lost J. Kirk Osborn, one of the giants of the capital defense community. Kirk defended more than a dozen capital cases and never had a client sentenced to death. His advocacy and deep compassion for his clients saved many lives, and inspired other attorneys to follow in his footsteps.

This year, the Center for Death Penalty Litigation will once again honor Kirk’s legacy by presenting the J. Kirk Osborn Award for lifelong zealous advocacy, compassion for indigent men and women facing the death penalty, and leadership among capital defense attorneys. The 2017 award will go to Elaine Gordon, another warrior against the death penalty and a pillar of the capital defense community.

Elaine began her career as a public defender, working in Atlanta, Washington D.C. and Durham. In 2002, she joined CDPL’s Trial Assistance Unit and took on her enduring role as a consultant on capital cases across the state. She moved to the N.C. Office of Indigent Defense Services’ capital defender’s office in 2011, where she continued in her role as a compassionate ear and expert advisor for every North Carolina lawyer who has faced the awesome responsibility of defending a capital client at trial. She has helped to train virtually every capital trial attorney in North Carolina.

Elaine Gordon

Elaine always emphasized the importance of lawyers building strong relationships with clients. She developed critical resources for helping defendants facing the death penalty fully understand the risks of capital trials and make smart decisions in their own cases. Capital attorneys knew her as someone they could call at any time of the day or night, who never turned down an opportunity to help them bring a case to the best resolution. Many capital defense attorneys say she is a key reason why death sentences in North Carolina have fallen so dramatically in recent years.

“There are few attorneys who care for their clients – who truly see the value in their lives – as Elaine does. Her ability to build relationships with even the most broken of clients is simply magical,” writes Anna Arceneaux, a senior staff attorney with the ACLU’s Capital Punishment Project. “Capital clients across the state have taken life-saving pleas for no other reason than that they loved Elaine. Because they felt so deeply how much she cared for them and knew she would only recommend it if it were in their best interest.”

Elaine also took on her own clients, including death row inmate Shawn Bonnett. She visited Bonnett every month for 15 years, gaining a deep understanding of the conditions on death row and the unfairness of the death penalty. Bonnett was one of four people who participated in a robbery that led to a man’s murder. He was neither the shooter nor the mastermind of the crime, yet he was the only one of the four to receive the death penalty. Elaine fought ceaselessly until Bonnett finally won relief and was removed from death row in 2014. She says Bonnett’s suffering on death row motivated her to keep other defendants from ending up there.

She has also won the Fair Trial Initiative’s Mary Ann Tally Award for “dedication and leadership that elevates the practice of capital defense,” as well as the Charles L. Becton Award for Teaching from the N.C. Advocates for Justice.

The Anthony G. Amsterdam Award

Tony Amsterdam

This year for the first time, CDPL will also present the Anthony G. Amsterdam Award, in honor of Tony’s relentless and groundbreaking work to end the death penalty. Tony argued in front of the Supreme Court on multiple occasions, and always refused to mince words about the systemic racism and unfairness that infects our capital punishment system. Tony is best known for winning Furman v. Georgia, which effectively stopped executions for nearly a decade and forced a complete overhaul of the American death penalty. He is the architect of the modern strategy to end the death penalty.

Ken Rose was the obvious choice for the Amsterdam Award, as he is North Carolina’s version of Tony. All of us in the capital defense community know Ken as our visionary, whose passionate pursuit of relief for his clients has transformed the landscape in North Carolina. Thanks in large part to Ken’s innovative ideas and impact litigation, and his refusal to give up despite the odds, executions have been on hold for more than a decade and groundbreaking evidence of racial bias in capital cases has come to light in North Carolina. Ken also saw two of his death-sentenced clients, Henry McCollum and Bo Jones, released. McCollum received a pardon of innocence from the governor in 2015.

Ken retired from his longtime post as a senior attorney and former executive director at CDPL at the end of 2016. He had come to North Carolina in 1989, a young lawyer who began his career in Georgia with the idealistic notion that a poor criminal defendant facing the death penalty should get the same quality of defense as a deep-pocketed corporate client. He grew into one of North Carolina’s most respected and visionary death penalty attorneys.

Ken pushed for the passage the N.C. Racial Justice Act, a first-of-its-kind 2009 law that exposed decades of systematic racial bias in capital jury selection. He is also a key player in North Carolina’s lethal injection litigation, which has kept executions on hold here for more than a decade – an achievement that no other southern state has even approached.

Through it all, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised – and outraged – at injustice. He never stopped plotting how to outwit the machinery of death, constantly dreaming up creative strategies that pushed boundaries and set precedents. And he never stopped representing every client as if both of their lives depended on it.

“Ken is both fearless and relentless on behalf of his clients,” says CDPL’s Executive Director Gretchen M. Engel. “There were times when he made judges and opposing counsel furious with his arguments. You could cut the tension in the courtroom with a knife. Most lawyers would have lost their nerve and started backpedaling. Ken was eerily calm and he never backed down.”

In 1999, David Gainey was sentenced to death in North Carolina based almost entirely on his own confession — even though that confession was coerced and clearly contradicted the physical evidence in the case. Among the facts Gainey got wrong were the location of the shooting, the number of shots fired, the victim’s state of consciousness after the shooting, and the location of the weapon.

Last week, in light of serious questions about his role in the crime, Gainey won a new sentence. He agreed to plead guilty to second-degree murder and will serve 26 years.

It was a long overdue resolution in a case that underscores the waste and sloppiness of our capital punishment system. Gainey was a former client of CDPL, and our attorneys began their fight to overturn his sentence 15 years ago. It took nearly two decades, the work of dozens of lawyers, and untold thousands of dollars to expose the injustice of Gainey’s death sentence and reach a just conclusion.

Gainey is yet another example of North Carolina’s penchant for pursuing the death penalty in cases with flimsy evidence. Rather than fully investigating crimes, law enforcement frequently uses the threat of execution to pressure suspects into confessing. It was this type of police work that led to the false confessions of Henry McCollum and Leon Brown, who were exonerated in 2014, three decades after being sentenced to death for a murder they did not commit.

In Gainey’s case, just like McCollum and Brown’s, police had little to go on except an inconsistent confession dragged out of him during hours of interrogation. When a team of two CDPL attorneys and a mitigation investigator were assigned to Gainey’s case in 2002, they quickly discovered a case full of holes.

Police arrested Gainey in 1998, after he was spotted driving a car belonging to Dwayne McNeill, an 18-year-old from Harnett County who was missing and later found dead. Investigators used coercive tactics, including threats to charge Gainey’s younger brother with the crime, to elicit three separate and conflicting confessions. The police investigation ended with Gainey’s confession, meaning that clues that might have pointed to a different killer were never gathered.

Despite the many questions raised by Gainey’s confession, the N.C. Supreme Court affirmed his conviction and death sentence. But after extensive investigation by CDPL’s team, the Supreme Court took the rare step of granting Gainey a new evidentiary hearing.

At the hearing in 2009, CDPL attorney David Neal and private attorney Don Cowan presented strong evidence that their client’s confession was false and unreliable, and they showed that the state had withheld critical evidence from the defense at trial. Superior Court Judge Gregory A. Weeks ordered a new trial.

Since then, CDPL Board Secretary Buddy Conner has been part of Gainey’s defense team. He and Chatham County attorney Bob Trenkle worked for years to reach last week’s deal, which finally removes David Gainey from the shadow of the execution chamber for good.

In a just system, Gainey would never have been tried capitally to begin with and tens of thousands of dollars would have been saved.

CDPL attorneys Elizabeth Hambourger and Vernetta Alston were part of the team that won a life sentence for Nathan Holden in Wake County on March 3. The jury rejected both the state’s claim that the murder was premeditated and that the death penalty was warranted. It was the eighth capital trial in a row in which a Wake County jury chose life without parole over a death sentence. Here you can watch Elizabeth Hambourger give her moving closing argument, in which she asked the jury to save her client’s life.

Clients with intellectual disabilities are some of the most vulnerable people we represent. On April 13 in Raleigh, CDPL will host a one-day continuing legal education seminar on representing clients with intellectual disabilities in capital cases — and saving their lives. For attorneys and mitigation investigators appointed to represent indigent capital defendants. Enrollment is limited and preference is given to first-time attendees. Cancellations after April 6 are non-refundable.

Learn more about intellectual disabilities and the death penalty in North Carolina at NCDeathPenalty.org.

Full agenda:

The Center for Death Penalty Litigation Presents

WORKING WITH OUR MOST VULNERABLE CLIENTS AND SAVING THEIR LIVES:
THE DEFENSE OF CLIENTS WITH INTELLECTUAL DISABILITIES IN CAPITAL CASESNorth Carolina Advocates for Justice Headquarters, 1312 Annapolis Drive, RaleighApril 13, 2017

8:45 Registration (coffee provided)

9:10 Welcome

9:15 Overview of Intellectual Disabilities Law — Gretchen M. Engel

From Atkins v. Virginia to Hall v. Florida and Brumfield v. Louisiana, as well as N.C. Gen. Stat. §15A-2005 and its 2015 revisions.

Ken retired this month from CDPL, where he had worked since 1996 and earned his reputation as one of North Carolina’s most respected and visionary death penalty defense attorneys. During his 35-year career in North Carolina, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised — and outraged — at injustice. He never stopped plotting to outwit the machinery of death. And he never stopped representing every client as if both of their lives depended on it.

In 2016, North Carolina passed the decade mark without an execution, tried just five people capitally in all 100 counties, and of those five, sent only one person to death row. As another year ends, North Carolina continues to reflect national trends, which clearly show the death penalty on the decline. Yet, despite the death penalty’s fade, North Carolina continues to cling to one relic of the death penalty’s past. With 150 men and women awaiting execution, North Carolina has the sixth largest death row in the nation — and most were sentenced more than 15 years ago.

On Oct. 6, CDPL honored Lisa Andrew Dubs, the winner of the 2016 J. Kirk Osborn Award for her lifelong commitment to representing defendants facing the death penalty. Lisa’s deep care and concern for her clients has made her one of North Carolina’s most successful capital defense attorneys. [Read more here about the award, and about Lisa’s outstanding career.]

The award reception was held at the beautiful Durham home of Don Beskind and Wendy Robineau. A big thank you to our hosts, and to all our sponsors who made this inspiring night possible. Special thanks to our photographer, Emily Baxter of We Are All Criminals.

CDPL is marking an important anniversary: A decade without an execution. On Aug. 18, 2006, Samuel Flippen was the last person to be executed at Central Prison. At the time, North Carolina had one of the most active death chambers in the nation. Since that day, we have become the only Southern state to end executions. However, we can never take for granted that this respite will continue. CDPL works every day to make sure North Carolina’s death chamber remains empty. Read more on NCDealthPenalty.org about why it’s time to end the death penalty for good.